Blog Roll

Court: Super PAC can use candidates' names

A federal appeals court has blocked a rule banning so-called super PACs from using the names of candidates in the titles and web addresses of projects and fundraising pitches.

A three-judge panel of the D.C. Circuit Court of Appeals concluded that the Federal Election Commission appeared to have violated the First Amendment by prohibiting "unauthorized" political committees from naming projects or programs after candidates the groups support.

The decision appears to break down another of the rather flimsy barriers between candidates and ostensibly unconnected super PACs supporting those candidates but raising donations in unlimited amounts. Candidates are already permitted to appear at fundraising events for those PACs, as long as they don't personally solicit donations in excess of federal limits.

The appeals court acted on a lawsuit brought by Pursuing America's Greatness, a political action committee that supported former Arkansas Gov. Mike Huckabee's bid for the Republican presidential nomination this cycle.

"The FEC understates the importance of a title," Judge Thomas Griffith wrote, joined by Judges Brett Kavanaugh and A. Raymond Randolph. "The title is a critical way for committees to attract support and spread their message because it tells users that the website or Facebook page is about the candidate. Without a candidate's name, the title does not provide the same signaling to the audience. Allowing a committee to talk about a candidate in the body of a website is of no use if no one reaches the website."

The court said the FEC could adequately address concerns about potential confusion by forcing a super PAC like Pursuing America's Greatness to publish "a large disclaimer at the top of [its] websites and social media pages" saying it has no ties to the candidate.

For now, the ruling appears to apply solely to the pro-Huckabee group. However, because of the precedential nature of the D.C. Circuit decision, other organizations could quickly get similar relief. The FEC is also unlikely to enforce its rules as long as the appeals court decision is in effect.

The decision directly addresses only the FEC regulation limiting the use of candidates' names in programs and projects, not a provision in federal law that bans such groups from using the actual names of candidates.

The three-judge panel assigned to the case was unusually conservative in its make-up. All three judges are GOP appointees. Griffith and Kavanaugh were appointed by President George W. Bush. Randolph was appointed by President George H.W. Bush.

The FEC could try to seek review by the full bench of the D.C. Circuit or ask the Justice Department to pursue an appeal to the Supreme Court.

An FEC spokeswoman declined to comment on the agency's plans.

A lawyer for the pro-Huckabee group, Jason Torchinsky, welcomed the decision.

"This case is clear a recognition that the FEC cannot enforce regulations that discriminate on the content of the speech - permitting some and prohibiting others," Torchnisky said.

FEC rulings do allow clearly negative uses of a candidate's name in the titles of an unauthorized committee's projects. The commission has said such use is less likely to create confusion.

UPDATE (Tuesday, 5:03 P.M.): This post has been updated to add reaction and to clarify that the D.C. Circuit ruling applies directly only to the FEC regulation on the names of projects and programs and not the portion of federal law limiting the official name of a committee.